The opinion of the court was delivered, by
Read, J.Thomas Lucas died intestate on the 19th February 1861, leaving some personal estate and considerable real estate, and twelve children, one of whom, Swan Lucas, was indebted to his father. Letters of administration were granted to tAvo of the sons, Thomas and Charles, who are the present appellants.
Proceedings were commenced in the Orphans’ Court of Greene county for a partition of the real estate, AYhich was sold by the administrators under a decree of the court, and on the 18th March 1862 they reported the sale of the several purparts for $15,952.50, payable in three annual instalments, with interest, the first of which was payable on the 1st March 1862, the second on the 1st March 1863, and the last on the 1st March 1864. On the same day the court confirmed the sale, and on the 28th March, ten days aftenvards, the court appointed an auditor to distribute the fund, and on the 6th October the court confirmed his report, except as to Swan Lucas’s share, the same being excepted to. On the 19th December the report Avas recommitted to the auditor to report upon the facts and upon the exceptions filed, and here these proceedings seem to have stopped.
On the 15th June 1864, the administrators filed their account of the personal estate of the deceased. On the 20th March 1865 *407R. W. Downey, Esq., was appointed auditor upon Swan Lucas’s share, and on the 31st March 1866 his report was confirmed.
It will be recollected that the whole of Swan Lucas’s share of the real estate sold was not payable until the spring of 1864, and that the administrators settled no account of the personal estate until the 16th June 1864. From the report of the auditor, it appears that he had before him Swan Lucas’s share both of the real and personal estate, for “ he examined the evidence consisting of the inventory, sale lists, account, auditor’s report of and upon the estate of Thomas Lucas, Sr., deceased, and that he heard the counsel on behalf of the several parties interested.”
It appeared that Swan Lucas was indebted to his father in a sum which took the whole of his share of the personal estate, the whole of the first instalment, and part of the second, not due till 1st March 1863 — which were applied to pay this debt. This left a balance of his share of the proceeds of the real estate, amounting to 662.30, which the auditor appropriated to pay judgments against Swan Lucas, entered after, the death of his father, in 1861, and before the sale in the partition suit. There were liens on the interest or share of Swan Lucas in the real estate, and they were to be paid according to their pi-iority. The administrators were simply the officers of the court to make the sale and receive the proceeds, of which they were simply the custodians and trustees — subject to the orders of the court, and with no power to pay any part of the fund to any one to whom it did not belong. The share of Swan Lucas belonged to his judgiaentcfeditors, and neither he nor the administrators could divert it from them. The administrators, in violation of their duty, took a receipt from Swan Lucas on the 11th April 1862 for ¡$428.30, on the ground that they were sureties for him. Swan Lucas could not make the appropriation, and they had no money in their hands to pay it, for the whole amount was appropriated to pay his debt to his father’s estate.
There never was a clearer or a more just decision than the decree of the Orphans’ Court in this case, who had full and exclusive jurisdiction in this matter. The powers and jurisdiction of the Orphans’ Court over the estate of an intestate, and the interest of the heir in it, have been discussed, elucidated and pointed out by the present Chief Justice, in his very able opinion in Horner v. Hasbrouck, 5 Wright 169.
An objection to the power of the court is made by the appellants, that they did not appoint an auditor before the sale was confirmed, according to the 49th section of the Act of 29th March 1832, and that of course they had not any power either over the fund or to appoint an auditor. The section is, in its language, permissive, and conforms to a rule of practice which prevailed at that time in one or more of the Orphans’ Courts, and particularly *408in Philadelphia, under the wise administration of Judge King. Its object was to protect “ encumbrances upon the interests of heirs, in real estate, which being converted into money, by proceedings in partition, the security of the encumbrance becomes seriously impaired.”
But whose duty was it to apply to the court for an auditor ? Clearly that of the administrators, the officers of the court, who knew there were encumbrances on one share or purpart. Instead of that they had the sale confirmed on the very day it was reported to the court.
Ten days afterwards an auditor was appointed, and his report on Swan Lucas’s share was excepted to, hung up and finally, after the payment of the whole purchase-money, referred to and acted upon by the auditor (Mr. Downey), and his report was confirmed by the court.
This decree is affirmed by us, and we hope that hereafter, in all cases coming within the provisions of the 49th section, the executor or administrator will apply to the court to appoint an auditor for the purposes specified in the section. Every prudent man, for his own sake, would certainly do so.
Appeal dismissed at the costs of the appellants, and decree affirmed.